Parties Seek To Preserve Arthrex Rights Despite Waiver Ruling

Following on Judge Newman's dissent in Sanofi-Aventis Deutschland GmbH v. Mylan Pharmaceuticals Inc., parties are seeking to preserve their rights by challenging the Federal Circuit's holding that a party's failure to raise the Arthrex Appointment Clause issue in their opening brief waives that challenge.

For example, Customedia Technologies, LLC ("Customedia")  petitioned for rehearing en banc  of the Federal Circuit's denial of its motion for leave to file a supplemental brief raising the Appointments Clause challenge.  As noted in an earlier post, on the day after the Arthrex decision the Federal Circuit denied Customedia's motion for leave because it did not raise the Appointments Clause challenge in its opening brief or a motion filed prior to its opening brief.